January 24, 2012, Introduced by Reps. Yonker, Dillon, Hooker, Foster, Heise, Johnson, Daley, Haines, MacMaster, Outman, Somerville, MacGregor, Potvin, Lyons, Horn, O'Brien, Pscholka, Roy Schmidt, Callton, Haveman and Lori and referred to the Committee on Transportation.
A bill to amend 1972 PA 106, entitled
"Highway advertising act of 1972,"
by amending sections 11 and 11a (MCL 252.311 and 252.311a), section
11 as amended by 2006 PA 448 and section 11a as amended by 2009 PA
86.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec. 11. (1) Except as otherwise provided in subsection (2), a
person who trims or removes trees or shrubs within a highway right-
of-way for the purpose of making a proposed or existing sign more
visible may be ordered to pay a penalty of up to 5 times the value
of the trees or shrubs trimmed or removed unless the person trimmed
or removed the trees or shrubs under the authority of a permit
issued under section 11a. The value of the removed trees or shrubs
shall
be determined by the department in accordance with section
11a(3).using the most recent version of the
international society
of arboriculture's guide for plant appraisal and the corresponding
Michigan tree evaluation supplement to the guide for plant
appraisal published by the Michigan forestry and park association.
The department may use another objective authoritative guide in
consultation with representatives of the outdoor advertising
industry and other interested parties, if either the guide or the
supplement has not been updated for more than 5 years. The
department, in consultation with representatives of the outdoor
advertising industry and other interested parties, may develop a
value schedule for vegetation. If agreed to by both the department
and the applicant, this value schedule shall be used to determine
the value of the vegetation managed. The department has the burden
of proof in any administrative proceeding brought for an alleged
violation of this subsection.
(2) A person who removes trees or shrubs within a highway
right-of-way for the purpose of making a proposed or existing sign
more visible without first obtaining a permit under section 11a is
guilty
of a felony misdemeanor punishable by imprisonment for not
more
than 2 years 90 days or a fine of not more than $25,000.00,
$5,000.00,
or both. If no criminal action pursuant
to under this
section has been brought against the person within 1 year of the
removal of trees or shrubs without a permit, the department may
proceed to recover the penalty prescribed in subsection (1). If a
criminal
action is brought against a person pursuant to under this
subsection, the department shall not proceed to recover the penalty
prescribed in subsection (1).
(3) If a sign owner or the sign owner's agent trims or removes
trees or shrubs without first having obtained a permit under
section
11a, the sign owner shall is
not be eligible to obtain a
permit under section 11a to trim or remove trees or shrubs for 3
years from the date of the improper trimming or removal of trees or
shrubs.
(4) If trees or shrubs within a highway right-of-way have been
trimmed or removed by a sign owner or its agent for the purpose of
making the sign more visible, the sign shall be considered illegal
and
the department may remove the sign pursuant to in accordance
with the procedures established in section 19 if a court determines
any of the following:
(a) The trimming or removal was in violation of a local
ordinance.
(b) The trimming or removal resulted in the intentional
trimming or removal of trees or shrubs that were not authorized to
be trimmed or removed in a permit issued under section 11a.
(c) The sign owner trimmed or removed trees or shrubs and did
not obtain a permit under section 11a.
(5) If a sign is removed under this section and the department
subsequently receives an application for a permit under section 6
for the same area, the department shall consider that the
conditions for the permit issued under section 6 remain in force
for spacing and all other requirements of this act.
Sec. 11a. (1) Subject to the requirements of this section, the
department is authorized to and shall issue permits for the
management of vegetation to the owner of a sign subject to this
act.
(2) A sign owner may apply to the department for a permit to
manage vegetation using the department's approved form. The
application shall be accompanied by an application fee of $150.00
to cover the costs of evaluating and processing the application.
The application shall be submitted during the 2 or more annual
application periods not less than 60 days each, as specified by the
department.
The application shall clearly identify the vegetation
area to be managed in order to create visibility of the sign within
the
billboard viewing zone. and all proposed mitigation for the
impacts
of the vegetation management undertaken. The applicant
shall not be required to identify the specific vegetation to be
managed within the identified area. The application shall also
include anticipated management that will be needed in the future to
maintain the visibility of the sign within the billboard viewing
zone for the time specified in subsection (4) and procedures for
clearing vegetation as determined by the department.
(3) Unless otherwise agreed to by the department and an
applicant, the department shall issue its decision on an
application no later than 30 days after the last day of the
application period. The department shall approve the application,
approve the application with modification, or deny the application.
The department may, as a condition for issuing an initial permit to
manage vegetation for a sign installed on or after January 1, 2012,
require the applicant to mitigate any loss of vegetation by
planting vegetation as required by the department at that location
or another location. Mitigation shall not include payment for the
loss of vegetation. If the department approves the application or
approves the application with modification, it shall notify the
applicant. and
the notification shall include the value of the
vegetation
to be managed as determined by the department using the
most
recent version of the international society of arboriculture's
guide
for plant appraisal and the corresponding Michigan tree
evaluation
supplement to the guide for plant appraisal published by
the
Michigan forestry and park association. The department may use
another
objective authoritative guide in consultation with
representatives
of the outdoor advertising industry and other
interested
parties, if either the guide or the supplement has not
been
updated for more than 5 years. The department, in consultation
with
representatives of the outdoor advertising industry and other
interested
parties, may develop a value schedule for vegetation. If
agreed
to by both the department and the applicant, this value
schedule
shall be used to determine the value of the vegetation to
be
managed. The notification to the applicant shall also include
any
required mitigation for the vegetation to be managed and all
conditions
and requirements associated with the issuance of the
permit.
The permit fee shall be $300.00,
except that in special and
unique situations and circumstances where the department incurs
additional costs directly attributable to the approval of the
permit, a fee greater than $300.00 adequate for the recovery of
additional costs may be assessed. Upon receipt of the permit fee,
payment
for the value of the vegetation, and compliance with MDOT
conditions
and requirements, the department
shall, except as
otherwise provided by law, issue the permit.
(4) Subject to the provisions of this subsection, a permit to
manage vegetation shall provide for a minimum of 5 seconds of
continuous, clear, and unobstructed view of the billboard face
based on travel at the posted speed as measured from the point
directly adjacent to the point of the billboard closest to the
highway. The department and the applicant may enter into an
agreement, at the request of the applicant, identifying the
specific location of the continuous, clear, and unobstructed view
within the billboard viewing zone. The specific location may begin
at a point anywhere within the billboard viewing zone but shall
result in a continuous, clear, and unobstructed view of not less
than
5 seconds. An applicant shall apply for a permit that
minimizes
the amount of vegetation to be managed for the amount of
viewing
time requested. Applications for
vegetation management that
provide for greater than 5 seconds of continuous, clear, and
unobstructed viewing at the posted speed as measured from a point
directly adjacent to the point of the billboard closest to the
highway shall not be rejected based solely upon the application
exceeding the 5-second minimum. For billboards spaced less than 500
feet apart, vegetation management, when permitted, shall provide
for a minimum of 5 seconds of continuous, clear, and unobstructed
view of the billboard face based on travel at the posted speed or
the distance between the billboard and the adjacent billboard,
whichever is less.
(5) The department shall issue permits for vegetation
management in a viewing cone or, at the department's discretion,
another shape that provides for the continuous, clear, and
unobstructed view of the billboard face. The department may, in its
discretion, issue a permit for vegetation management outside of the
billboard viewing zone.
(6)
If no suitable alternative exists, or the applicant is
unable
to provide acceptable mitigation, the
department may deny an
application or provide a limited permit to manage vegetation when
it can be demonstrated that 1 or more of the following situations
exist:
(a) The vegetation management would have an adverse impact on
safety.
(b) The vegetation management would have an adverse impact on
operations of the state trunk line highway.
(c) The vegetation management conflicts with federal or state
law, rules, or statutory requirements.
(d) The applicant does not have the approval of the owner of
the property.
(e)
The vegetation to be managed was planted or permitted to
be
planted by the department for a specific purpose.
(e) (f)
Vegetation would be managed for a
newly constructed
billboard. or
vegetation existed that obscured the billboard or
would
have obscured the billboard before it was constructed. In
denying
an application or providing a limited permit, the
department
shall consider previous vegetation management that was
allowed
at the billboard site.
(f) (g)
The management would occur on a
scenic or heritage
route
that was designated on or before the effective date of the
amendatory
act that added this section.January
1, 2007.
(g) (h)
The application is for a sign that
has been found,
after a hearing in accordance with section 19, not to be in
compliance with this act.
(i)
Other special or unique circumstances or conditions exist,
including,
but not limited to, adverse impact on the environment,
natural
features, or adjacent property owners.
(7)
If the department denies an application, or issues a
limited
permit under this subsection, the
department shall provide
a
specific rationale for denying an the application. or
approving a
limited
permit.
(8)
No later than 30 days after receiving a denial or a
limited
permit under subsection (6), an
applicant may request the
review
and reconsideration of the denial. or limited permit. The
applicant shall submit its request in writing on a form as
determined by the department. The applicant shall state the
specific item or items for which review and reconsideration are
being
requested. An applicant who received a limited permit may
manage
vegetation in accordance with that permit during the review
and
reconsideration period.
(9) No later than 90 days after January 1, 2007, the
department shall develop a procedure for review and reconsideration
of
applications that are denied. or that result in the issuance of
a
limited permit. This procedure
shall include at least 2 levels of
review and provide for input from the applicant. The review period
shall not exceed 120 days. The department shall consult with all
affected and interested parties, including, but not limited to,
representatives of the outdoor advertising industry, in the
development of this procedure.
(10) If, after review and reconsideration as provided for in
subsection
(8), the applicant is denied a permit, or issued a
limited
permit, the applicant may appeal
the decision of the
department to a court of competent jurisdiction.
(11) All work performed in connection with trimming, removing,
or relocating vegetation shall be performed at the sign owner's
expense.
(12) The department shall not plant or authorize to be planted
any vegetation that obstructs, or through expected normal growth
will obstruct in the future, the visibility within the billboard
viewing zone of any portion of a sign face subject to this act.
(13) The department shall prepare an annual report for
submission to the legislature regarding the vegetation management
undertaken
pursuant to under this section. At a minimum, this
report shall include all of the following items:
(a) The number of application periods.
(b) The number of applications submitted under this section.
(c)
The number of permits approved. without modifications.
(d)
The number of permits approved with modifications.
(d) (e)
The number of permits denied.
(e) (f)
The number of modified or denied
permits which that
were appealed.
(f) (g)
The number of appeals that reversed
the department's
decision.
(g) (h)
The number of appeals that upheld
the department's
decision.
(h) (i)
The number of permits approved which
that requested a
visibility time period exceeding 5 seconds.
(i) (j)
The amount of compensation paid to
the state for
removed vegetation.
(j) (k)
The average number of days after
the end of the
application period before an applicant was sent notice that a
permit was approved.
(k) (l) A
summary of the reasons for which the department
denied
or modified permits.
(l) (m)
A summary of the amount of all
revenues and expenses
associated with the management of the vegetation program.
(14) The report in subsection (13) shall contain a summary for
the entire state and report in detail for each department region.
The department shall provide the report to the legislature for
review no later than 90 days following the completion of each
fiscal
year. The reporting deadline for the initial report is 18
months
after January 1, 2007.
(15) A person who under the authority of a permit obtained
under this section trims or removes more trees and shrubs than the
permit authorizes is subject to 1 or more of the following
penalties:
(a) For the first 3 violations during a 3-year period, a
penalty
of an amount up to $5,000.00 $1,000.00
or the amount
authorized as a penalty in section 11(1), whichever is greater.
(b) For the fourth violation during a 3-year period and any
additional violation during that period, a penalty of an amount up
to
$25,000.00 $5,000.00 or double the amount authorized as a
penalty in section 11(1), whichever is greater, for each violation.
(c) For the fourth violation during a 3-year period, and any
additional violation, a person is not eligible to obtain or renew a
permit under this section to manage vegetation for a period of 3
years from the date of the fourth violation.
(16) If the department alleges that a person has trimmed or
removed more trees or shrubs than the permit authorizes, then the
department shall notify the person of its intent to seek any 1 or
more of the penalties provided in subsection (15). The notification
shall be in writing and delivered via United States certified mail,
and shall detail the conduct the department alleges constitutes a
violation of subsection (15), shall indicate what penalties the
department will be seeking under subsection (15), and shall occur
within 30 days of the filing of the completion order for the
trimming or removal of trees or shrubs the department alleges
violated the permit. Any allegation by the department that a person
has trimmed or removed more trees or shrubs than the permit
authorizes
shall be is subject to the appeals process contained in
subsections (8), (9), and (10). The department has the burden of
proof in an administrative proceeding brought for an alleged
violation of this section.
(17) As used in this act:
(a) "Billboard viewing zone" means the 1,000-foot area
measured at the pavement edge of the main-traveled way closest to
the billboard having as its terminus the point of the right-of-way
line immediately adjacent to the billboard.
(b) "Vegetation management" means the trimming, removal, or
relocation of trees, shrubs, or other plant material.
(c) "Viewing cone" means the triangular area described as the
point directly below the face of the billboard closest to the
roadway, the point directly below the billboard face farthest away
from the roadway, a point as measured from a point directly
adjacent to the part of the billboard closest to the roadway and
extending back parallel to the roadway the distance that provides
the view of the billboard prescribed in this section, and the
triangle described by the points extending upward to the top of the
billboard.
Enacting section 1. This amendatory act is curative and
applies to administrative proceedings pending on January 1, 2012
and filed after that date.
Enacting section 2. This amendatory act takes effect January
1, 2012.